Reverse engineering federalism

By Jose Bayani Baylon

March 07, 2018

I AM enjoying reading the books of Akhil Reed Amar on the history of the United States Constitution, the document that has become the inspiration of hundreds of other national basic laws all over the world, including the 1935 and even the 1987 Philippine Constitutions.

How the US version came into being, a successor and replacement to an earlier Articles of Confederacy, is such an interesting read. Whether it is debating specific provisions of the document to discussing how such a document had to be approved by citizens of 13 disparate Colonies-States, Amar’s books should be read by students of the law and of political science and even by ordinary citizens with time on their hands and an appetite for thick historical tomes.

Because of the times we are in, I have found most interesting are the portions on how the 13 colonies that rose against British rule cobbled together the articles first of confederation and then the articles that made up the Constitution. Each colony/state had its own internal rules that governed how they would be bound by agreements with others – basically international agreements that were also subject to principles of international law! What was clear was that the decision of one Colony-State, however it was achieved, bound only that State and not the others. The independent existence of each of the 13 colony-states was clear and indubitable, and so it was that 13 modes of ascension to the Constitution drafted in Philadelphia is what transpired, with the first nine enough to bring the new United States of America into existence.

Bottom line is that the United States was born out of 13 individual, independent jurisdictions who came together to establish a federalized whole. And it can be said that more than 200 years later the relationship between the federal government and the now-50 States remains a relationship in the process of development through a cycle of practice, legislation and jurisprudence.

As we discuss the idea of federalizing the Republic of the Philippines, I am made to pause and consider the reverse engineering that we seem to be proposing. Why reverse engineering? Because unlike in the US experience where the colony-State and its local laws and customs predated the United States and its legal framework, here in the Philippines the central government predates the regions or States that it wishes to break up into.

Worse, while it was very clear to one and all that Virginia and Maryland and New Jersey and New York were separate entities, what separate entities did we break up into? Do we follow the regions first created under the Marcos years and tweaked under later administrations? That to me would be the easiest to do. Or do we create new regions/states maybe to correct some errors of the past division – like do we keep the two Negros provinces together? That to me would seem wiser but definitely will require far more work than just drawing up a federal/national constitution.

It seems we want to build the house first on a non-existent foundation, with the foundation to follow. And this worries me a lot.

A friend who is at the forefront of the push for federalization boasted on Facebook that he had spoken to taxi drivers and janitors and they to a man clearly understood what federalization would mean and are all for it. His boast left me scratching my head. Because I suspect that if we took an honest to goodness poll of the man on the street, what we would get at best are motherhood statements, if not quizzed looks or, at worst, totally off tangent replies. And if I am right, then this earnest effort to convince the public to go Federal is going to be one for an updated edition of Barbara Tuchman’s book The March of Folly.

Column of the Day

‘As an agency of the UN, the Office of the UN High Commissioner for Human Rights is expected to fulfill its duties within the framework set out by the purposes and principles of the UN Charter.’ – Chinese spokesman Lu Kang.

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